Relator,
Polaris Industries, Inc., seeks a writ prohibiting
Respondent, the Honorable James K. Journey, Circuit Judge of
Bates County, from taking any action other than granting
Polaris's motion for judgment on the pleadings in the
underlying action. Finding Polaris did not demonstrate a
clear and unequivocal right to the relief requested, we quash
the preliminary writ of prohibition.

Background

The
parties largely agree on the relevant facts. On May 27, 2004,
Plaintiff Tonna Cummings's husband was operating a 1995
Polaris "Big Boss 6x6" all-terrain vehicle (ATV) to
spray weeds for Husband's employer when the ATV allegedly
overturned. Cummings claims that, as a result of the
incident, Husband became trapped underneath the ATV and
sustained fatal injuries.

On
March 4, 2005, Cummings commenced a wrongful-death action
against Polaris (the Original Action), alleging defects in
the ATV's design, manufacture, and warnings. After the
litigation had been pending for over five years, Respondent
entered an order placing the case on the court's
"inactive docket." The order was signed by
Respondent on November 3, 2011, and filed the same day. The
order placing the Original Action on the inactive docket
explained that the case could be removed from the inactive
docket "only on written motion, with notice to the
opposing parties, and for good cause shown." The order
further stated that, "Absent removal from the inactive
docket within 60 days of this date [November 3, 2011], this
case will automatically be dismissed without prejudice
and without further order." (Emphasis in the
original document.) This is consistent with Local Rule 37(3),
(6), [1] which states that "[a]ny case placed
on the inactive docket shall be dismissed without prejudice
upon sixty (60) days of placement on the inactive
docket" unless the party shows good cause for its
removal from the inactive docket. All such dismissals
"shall be automatic upon the expiration of the 60 day
time period without further action by the Court." Local
Rule 37(5).[2]

Cummings
did not file a motion to remove the case from the inactive
docket at any time on or before January 2, 2012-the sixtieth
day after the November 3, 2011 order placing the case on the
inactive docket.[3] An unsigned docket entry dated January 10,
2012 notes: "Dismiss by Ct w/o Prejudice"; and, at
the top of the docket sheet it reads, "Disposition:
Dismiss by Ct w/o Prejudice" and "Disposition date:
10-Jan-2012."

On
January 4, 2013, Cummings commenced a second action (the
Second Action) by filing a Petition for Damages, restating
her wrongful-death claims against Polaris. Polaris filed a
motion for judgment on the pleadings on the ground that the
statute of limitations barred Cummings's claims. Polaris
noted that the three-year statute of limitations for
wrongful-death actions expired many years before Cummings
filed the Second Action, and it further argued that the
statute's one-year savings provision did not apply
because the Second Action was commenced more than one year
after January 2, 2012, which Polaris argued was the date of
dismissal of the Original Action. Cummings opposed
Polaris's motion, arguing that the dismissal of the
Original Action did not take effect until January 10, 2012,
when the entry was made on the circuit court's docket
sheet.

Following
a hearing on Polaris's motion, Respondent entered an
order denying the motion. Polaris sought a writ of
prohibition from this court, and we entered a preliminary
order.

Both
Polaris and Cummings submitted materials outside of the
pleadings in connection with Polaris's motion for
judgment on the pleadings. Thus, Polaris's motion for
judgment on the pleadings is treated as a motion for summary
judgment. Rule 55.27(b) ("If, on a motion for judgment
on the pleadings, matters outside the pleadings are presented
to and not excluded by the court, the motion shall be treated
as one for summary judgment . . . ."). An appellate
court "seldom grants a writ to compel the grant of a
motion for summary judgment, but . . . issuance of a writ
'can be an appropriate remedy where a trial court
erroneously permits a claim that is barred by the statute of
limitations to proceed to trial.'" State ex rel.
Heart of Am. Council v. McKenzie, 484 S.W.3d 320, 324
(Mo. banc 2016) (quoting State ex rel. Bloomquist v.
Schneider, 244 S.W.3d 139, 141 (Mo. banc 2008)).
"The standard of review of the grant or denial of
summary judgment is de novo." Id.

Analysis

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Section
537.080.1 sets forth the cause of action for wrongful death
and delineates who is entitled to sue for damages."
Beisly, 469 S.W.3d at 437. "Section 537.100
states that every action brought pursuant to section 537.080
&#39;shall be commenced within three years after the cause of
action shall accrue.&#39;" Id. Much more than
three years passed between the accident and the filing of the
Second Action. However, "[s]ection 537.100 contains
explicit tolling exceptions . . . ." Id. One of
the exceptions applies when "any such action shall have
been commenced within the time prescribed in this section,
and the plaintiff therein take or suffer a nonsuit."
&sect; 537.100. In that situation, "such plaintiff may
commence a new action from time to time within one year after
such nonsuit suffered." Id. "Thus, where
refiling of a lawsuit would otherwise be barred by an
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.